M/S Charak Dignostic & Research Centre Pvt.Ltd., Jabalpur V. A.C.I.T. Circle 2(1), Jabalpur

ITA 35/JAB/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 82715 (ITAT-JABALPUR)
• Duration Of Justice: 1 year(s) 6 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-09-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 23-09-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 14-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ABHISHEK SHUKLA
• Section: 143(3); 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, JABALPUR BENCH, JABALPUR BEFORE SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER AND SHRI C.M. GARG, JUDICIAL MEMBER ITA NO.35/JAB/2013 ASSESSMENT YEAR: 2007-08 M/S. CHARAK DIAGNOSTIC & VS. ASSTT. COMMISSIONER OF INCOME TAX, RESEARCH CENTER PVT. LTD., CIRCLE 2(1), JABALPUR. PRABHU VANDANA BUILDING, MARHATAL, JABALPUR. (PAN: AADCC 1051 H). (APPELLANT) (RESPONDENT) APPELLANT BY : NONE RESPONDENT BY : SHRI ABHISHEK SHUKLA, D.R. DATE OF HEARING : 23.09.2014 DATE OF PRONOUNCEMENT : 26.09.2014 ORDER PER PRAMOD KUMAR, ACCOUNTANT MEMBER: BY WAY OF THIS APPEAL, THE ASSESSEE APPLICANT HAS C HALLENGED CORRECTNESS OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS)S ORDE R DATED 26 TH JUNE, 2012, IN THE MATTER OF ASSESSMENT UNDER SECTION 143(3) OF TH E INCOME TAX ACT, 1961 FOR THE ASSESSMENT YEAR 2007-08, ON THE FOLLOWING GROUND :- 1. CONSIDERING THE FACT THAT THE APPELLANT COMPANY IS FOLLOWING MERCANTILE SYSTEM OF ACCOUNTING HENCE IT HAS ACCOUN TED FOR AUDIT FEES AND OTHER PROFESSIONAL FEES BILL OF RS.44,944/- REL ATING TO THE FINANCIAL YEAR 2006-07, IN ITS BOOKS OF ACCOUNTS OF THAT FINA NCIAL YEAR, THOUGH 2 ITA NO.35/JAB/2013 A.YS. 2007-08 THE BILL WAS RECEIVED ON 31.10.2008 AND HAS DEPOSIT ED TDS AMOUNT WITHIN TIME, HENCE THE LD. COMMISSIONER OF INCOME T AX (APPEALS) OUGHT TO HAVE DELETED THE DISALLOWANCE OF RS.44,944 /- MADE BY THE LD. ASSESSING OFFICER BY APPLYING THE PROVISION OF SECT ION 40(A)(IA) OF THE ACT. 2. WHEN THIS APPEAL WAS CALLED OUT FOR HEARING, OUR ATTENTION WAS INVITED TO THE ADJOURNMENT PETITION FILED BY SHRI VIJAYA GUPTA. H OWEVER, HAVING REGARD TO THE FACT THAT THE ISSUE INVOLVED IN THIS APPEAL IS A SM ALL ISSUE IN NARROW COMPASS OF MATERIAL FACTS AND IT CAN BE DISPOSED OF ON A SHORT LEGAL GROUND, EVEN WITHOUT ASSISTANCE OF THE LEARNED COUNSEL, WE DEEM IT FIT T O REJECT THE ADJOURNMENT PETITION AND DISPOSE OF THE MATER EX-PARTE QUA THE ASSESSEE. 3. WE HAVE HEARD THE LEARNED DEPARTMENTAL REPRESENT ATIVE, PERUSED THE MATERIAL ON RECORD AND DULY CONSIDERED FACTUAL MATR IX OF THE CASE AS ALSO THE APPLICABLE LEGAL POSITION. 4. TO ADJUDICATE ON THIS APPEAL, ONLY A FEW MATERIA L FACTS NEED TO BE TAKEN NOTE OF. THE ASSESSEE IS ENGAGED IN THE BUSINESS OF MED ICAL DIAGNOSTIC CENTRE. DURING THE COURSE OF SCRUTINY ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER NOTICED THAT WHILE THE ASSESSEE HAS DEBITED AUDIT FEES AND PROFE SSIONAL FEES, AMOUNTING TO RS.28,090/- AND RS.16,854/- RESPECTIVELY, THE TDS H AS BEEN DEPOSITED ON THESE 3 ITA NO.35/JAB/2013 A.YS. 2007-08 AMOUNTS AFTER THE FILING OF INCOME TAX RETURN. THE ASSESSEES PLEA THAT IT WAS ONLY A PROVISION AND TDS HAS BEEN DULY PAID AFTER THE ACTU AL PAYMENT WAS MADE, WAS REJECTED. HOWEVER, FOR THE REASONS WE WILL SET OUT IN A SHORT WHILE, IT IS NOT REALLY NECESSARY TO DEAL WITH THESE FACTS IN MUCH DETAIL. SUFFICE TO NOTE THAT ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE COMMISSIONER OF INCOME TAX (APPEALS) BUT WITHOUT ANY SUCCESS. THE ASSESSEE IS IN FURTHER AP PEAL BEFORE US. 5. WE FIND THAT A CO-ORDINATE BENCH OF THIS TRIBUNA L HAS, IN THE CASE OF RAJEEV KUMAR AGARWAL VS. ACIT (149 ITD 363) HAS HELD THAT SECOND PROVISO TO SECTION 40(A)(IA), EVEN THOUGH INTRODUCED W.E.F. 01.04.2013 , IS RETROSPECTIVE IN EFFECT, AND, THEREFORE, AS LONG AS RECIPIENT HAS INCLUDED THE PA YMENT IN QUESTION FOR COMPUTING HIS INCOME IN RESPECT OF WHICH HE HAS FURNISHED HIS RETURN UNDER SECTION 139, DISALLOWANCE UNDER SECTION 40(A)(IA) CANNOT BE MADE . IN THIS VIEW OF THE MATTER, AS LONG AS RECIPIENT HAS COMPLIED WITH THE REQUIREMENT S OF SECTION 139 AND INCLUDED THE RECEIPT IN HIS COMPUTATION OF INCOME, DISALLOWA NCE UNDER SECTION 40(A)(IA) WILL NOT COME INTO PLAY. WE, THEREFORE, DEEM IT FIT AND PROPER TO REMIT THE MATTER TO THE FILE OF THE ASSESSING OFFICER FOR ADJUDICATION ON T HIS ASPECT OF THE MATTER. WE ORDER SO. 4 ITA NO.35/JAB/2013 A.YS. 2007-08 6. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATIST ICAL PURPOSES IN THE TERMS INDICATED ABOVE. PRONOUNCED IN THE OPEN COURT TODA Y ON 26 TH DAY OF SEPTEMBER, 2014. SD/- SD/- (C.M. GARG) (PRAMOD KUMAR) JUDICIAL MEMBER ACCOUNTANT MEMBER DATE: 26 TH SEPTEMBER, 2014 PBN/* COPY OF THE ORDER FORWARDED TO :- 1) APPELLANT 2) RESPONDENT 3) CIT (APPEALS) CONCERNED 4) CIT CONCERNED 5) D.R., ITAT, JABALPUR BENCH, JABALPUR 6) GUARD FILE. BY ORDER, ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL, JABALPUR